Setting the record straight: a legal challenge to the Illinois Eavesdropping Act

This spring, a New York photojournalism student — and the defendant in the first Occupy Wall Street case to go to trial — was acquitted of any wrongdoing after an activist’s recording of his arrest showed that no laws were broken. Ironically, the student did not attend the New York protest to support the Occupy movement, but instead to document the perspective of the police, which he thought was misrepresented in the media.

AP Photo by Seth Perlman

Josh Sharp, director of government affairs for the Illinois Press Association, speaks with reporters at the Illinois State Capitol in Springfield, Ill.

If the incident took place in Chicago, the very videographer who came to the student’s defense in a case concerning disorderly conduct would have faced felony charges and up to 15 years of jail time under the Illinois Eavesdropping Act, one of the broadest restrictions on audio recording in the nation.

The law, first enacted in 1961, criminalizes the audio recording of any communication without the consent of all parties involved, regardless of whether the conversation was intended to be private or whether the recording was made surreptitiously. Under the statute, individuals cannot record conversations of police officers openly engaged in their public duties. Having survived the recent explosion of handheld technologies that make audio recording discreet and the intensified rigor of government accountability, the law is still on the books today.

But in early May, a federal appellate court dealt a significant blow to Illinois’ eavesdropping statute, ruling that it is “likely” unconstitutional. It decided that the law could not be enforced specifically against the American Civil Liberties Union of Illinois’ employees when they record public interactions with Chicago-area police as part of the organization’s efforts to document police conduct.

“Unfortunately we could not do what our counterparts do around the country,” said Adam Schwartz, a senior lawyer for the organization. “The ACLU of Illinois feared prosecution under the act if we added audio recording to our historic police monitoring program.”

For now though, the ACLU can tape police officers without their consent when they are speaking at an audible volume in public, where there is likely no expectation of privacy — an activity that is still technically illegal in Illinois.

The ruling by the U.S. Court of Appeals in Chicago (7th Cir.) is relatively narrow, empowering just one local civil liberties group to record police for its particular watchdog program. But the case, ACLU v. Alvarez, also has the potential to establish a legal precedent in favor of other individuals and organizations that wish to serve the public interest by recording police officers, said Schwartz.

In fact, the state’s eavesdropping statute may soon face national scrutiny. The Illinois prosecutor who fought the ACLU over the law’s constitutionality plans to petition the U.S. Supreme Court to consider the case.

Finding First Amendment scrutiny

The Illinois ACLU brought its lawsuit against Cook County State Attorney Anita Alvarez as a First Amendment-based preemptive challenge, successfully arguing that the threat of prosecution under the eavesdropping act chills its right to implement its police accountability program.

“The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny,” wrote Judge Diane S. Sykes in the majority opinion for the court’s 2-1 ruling. “The expansive reach of this statute is hard to reconcile with basic speech and press freedoms.”

Alvarez argued that conversational privacy, which she said the government has a duty to protect, is at risk in the lawsuit brought on by the ACLU. She called the organization’s police accountability program “advocacy under the guise of First Amendment infringement” that lacked any possibility of a “personal and concrete injury” under the eavesdropping law, according to court documents.

But the court found that the Illinois ACLU faces a legitimate threat of prosecution under the state’s eavesdropping statute, and determined that the law overbroad when applied to police officer’s public communications made at an audible level. In reaching its decision, the court considered the First Amendment-protected methods that journalists employ to gather and disseminate news.

“By way of a simple analogy, banning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes,” wrote Sykes. “The same is true of a ban on audio and audiovisual recording.”

The Reporters Committee for Freedom of the Press, joined by several other news media advocacy groups, filed a friends-of-the-court brief in the case, arguing that the criminalization of communications, to which there is no reasonable expectation of privacy, chills socially valuable newsgathering and watchdog activities and suppresses the spreading of important information.

“[T]here is arguably no location in which First Amendment interests are stronger than on public streets and other open forums,” stated the Reporters Committee in its brief, which supported the right of all individuals to record in public places. “Nor is there any doubt that permitting citizens to record public activity by law enforcement, in which there is no reasonable expectation of privacy, enhances the function of government.”

Although the court recognized news media organizations’ constitutional concerns with the Illinois Eavesdropping Act, its narrow ruling only applies to the ACLU’s right to record police.

But likely motivated by the legal issues raised in the May 8 ruling, the city’s attorney decided not to enforce the controversial law in Chicago just a few weeks later, when thousands of demonstrators flocked to the city to protest during the recent North Atlantic Treaty Organization (NATO) summit. The protestors’ right to record during the weekend-long conference likely bolstered the case the Illinois ACLU made for its police accountability program, which it generally administers at “expressive activity” events such as public demonstrations.

“I don’t believe any state’s attorney in Illinois will bring charges now,” said Josh Sharp, director of government relations at the Illinois Press Association. “I believe there’s pretty overwhelming evidence for striking down this law.”

But Sharp noted that as long as the law stands, reporters and anyone with an interest in recording police are still vulnerable to prosecution. “Even though being charged under the law is pretty remote at this point, because the law is still on the books, a journalist can still be charged. They should still be careful,” he said.

Establishing precedent

The ACLU’s lawsuit might be a high-profile attack on the Illinois Eavesdropping Act, but it’s not the first time the divisive law has come under the scrutiny of the court system. Schwartz of the Illinois ACLU said that in the last eight years, more than a dozen people have been prosecuted in the state for secretly recording on-duty police; three of those prosecutions were brought by Alvarez’ office.

But in March, another Illinois State’s Attorney, Ron Dozier, of McLean County, diverged from Alvarez on the issue, dismissing felony charges against a 28-year-old man who recorded his interactions with a police officer during a traffic stop.

“My real problem with the law is that it makes a felony out of what is, in many cases, perfectly innocent conduct that even may be beneficial conduct,” Dozier said in an earlier interview.

In the same month, a trial court judge in Cook County — Alvarez’ jurisdiction — ruled in Illinois v. Drew that the eavesdropping statue is unconstitutional in the case of a street artist who recorded exchanges with police during his arrest.

“This law is defined by the Legislature and in bringing charges in this case the State’s Attorney’s Office was doing its job in enforcing this law as it currently exists in Illinois,” said Alvarez in a press release responding to the ruling in that case.

In January, a 21-year-old woman who was acquitted of similar charges sued the City of Chicago and three police officers, alleging that they violated her Fourth Amendment rights when she was arrested for secretly recording her interactions with police while filing a sexual harassment complaint with the department.

And last September, Illinois’ Second Judicial Circuit Court ruled in Illinois v. Allison that the state’s eavesdropping law is unconstitutional as applied to a man who faced up to 75 years in prison for secretly recording his encounters with police officers and a judge.

Evidently, the Seventh Circuit’s May ruling in favor of the ACLU joins other courts to recognize that the First Amendment protects the audio recording of police officers, including the U.S. Court of Appeals in Boston (1st Cir.), which held last year in Glik v. Cunniffe that the right to record police officials in the public performance of their duties is “clearly established.”

The recent judiciary challenges to strict audio recording laws in Illinois and elsewhere provide overwhelming proof that the state’s Eavesdropping Act violates the First Amendment and will therefore be struck down soon, according to Sharp of the Illinois Press Association. Based on the Illinois ACLU’s victory at the federal appellate level, “the courts will probably be the ones to take a next step,” he added.

Outside the courtroom

While the eavesdropping law faces the scrutiny of the courts, the Illinois House of Representatives, in a 71-45 vote, passed a measure sponsored by Rep. Elaine Nekritz that would amend the controversial statute to allow citizens to make audio recordings of police officers performing their duties in public. In written testimony, the Reporters Committee expressed support of the proposed legislation, which is now before the Illinois State Senate for consideration.

“The goal was to put an end the rather egregious prosecutions in the state of Illinois,” said Nekritz, adding that the bill would still consider interference into criminal investigations a crime and would only apply to police officers and not all state public officials.

Meanwhile, another provocative bill, sponsored by Sen. Michael Noland, sits before the State Senate. It would make it legal to record any public conversation as long as one party is aware of it, meaning that police officers could surreptitiously record civilians.

Nekritz said she opposes a broad expansion of police surveillance powers, adding that she thinks police must obtain a warrant in order to exert the kind of authority proposed in Noland’s bill.

“Citizens are not on an even playing field with law enforcement officers,” she said. “Law enforcement officers already have extraordinary powers.”

Regardless, the legal protection that audio recordings can provide covers more than the particular citizens who make them. The police officers on the other end of such documentation may also stand to benefit from an individual’s right to record them in public.

At a panel discussion on police recording in January at Loyola University Chicago, Chicago Police Superintendent Garry McCarthy said that he believes that the recordings in question could help protect both citizens and police.

“I actually am a person who endorses video and audio recording,” said McCarthy, according to the Chicago Sun-Times. “There’s no argument when you can look at a videotape and see what happened.”

While the Illinois ACLU continues to fight its state’s eavesdropping law, elsewhere, the group’s New Jersey chapter released a smartphone app, called “Police Tape,” in July that allows individuals to discreetly record police stops and store the files with the organization. It follows the ACLU of New York’s creation of a similar recording app, named “Stop and Frisk Watch,” in response to the controversial police practice of the same name.

“We think it’s a good police accountability tool,” said Alexander Shalom, the New Jersey ACLU’s policy counsel. “Now there’s the ubiquitous access to smartphones, it really increases the rate at which police can be taped.”

Shalom said that, like McCarthy of the Chicago Police, he thinks citizens’ right to record can benefit police officers as well.

“My prediction is that [the app] will be received much the same way that dashboard cameras were received,” he said. “At first police were really hesitant ... ;but once they got used to them and acclimated to having them, they recognize that it’s an accountability tool not just for citizens, but also for them.”

Unlike Illinois, New Jersey and New York are “one-party” states, meaning only one person in a conversation needs to give their consent to be recorded.

What’s next?

In light of the First Amendment arguments made by proponents of police recording, the wide-ranging discrepancies between state eavesdropping laws might raise the question of whether the issue should be addressed on a national state, added Shalom.

And that might be the direction in which ACLU v. Alvarez is heading. Although the Seventh Circuit Court ruled in favor of the ACLU’s police monitoring program in May, Alvarez has been granted a request to stay all proceedings so that she can petition the U.S. Supreme Court to hear the controversial case.

Alvarez’ office, which has been notoriously tight-lipped about its vigilance in enforcing the controversial eavesdropping law, declined to comment on why it continues to resist individuals’ right to record public police interactions. A spokesperson would only say that the Cook County State’s Attorney’s office is moving ahead with its appeal to the Supreme Court.

While Schwartz said he believes the likelihood of the case being heard by the high Court is low, the Cook County prosecutor has until mid-September to file her petition. In the meantime, the trial judge presiding over the case entered an order barring enforcement of the act.

But Alvarez’ planned petition could prolong the ACLU’s lawsuit, which argues that the right to record police officers in public is a necessary corollary of speech and press freedoms. An advocate for the protection of individuals’ constitutional rights, the organization said it is concerned by the threat Alvarez poses to its attempts to end the lengthy legal battle that, if ever finalized, has the potential to motivate the state legislature to do away the overbroad Illinois Eavesdropping Act once and for all.

“There’s no national question,” said Schwartz. “The Illinois eavesdropping act is a national outlier. There is no other state in the country where doing what we want to do here is a crime.”